Justia U.S. 8th Circuit Court of Appeals Opinion Summaries

The Eighth Circuit denied a petition for review of the BIA's decision ordering petitioner removed. The IJ had granted petitioner relief under the Convention Against Torture (CAT), finding that it was more likely than not that he would be tortured by al-Shabaab if he were returned to Ethiopia. However, the BIA concluded that the IJ's factual conclusions were clearly erroneous because they were based on a hypothetical chain of occurrences and not a plausible view of the facts and record in the case.The court concluded that the BIA applied the correct legal standard and did not engage in impermissible factfinding. In this case, the BIA cabined itself to reviewing the record and concluded that the evidence could not support the IJ's conclusions about petitioner's likelihood of torture and the Somalian government's acquiescence; it did not reweigh the evidence or find its own facts; and it committed no legal or factual error. View "Mohamed v. Garland" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's order denying petitioner and her two daughters' motion to reopen and remand. After petitioners sought asylum, withholding of removal, and protection under the Convention Against Torture, their petition was denied. Petitioners then applied for a U nonimmigrant status and moved for the Board to administratively close their appeal pending review of the U visa.In this case, the government has conceded petitioners' prima facie eligibility for U visa status as well as their due diligence in seeking it. The court concluded that the BIA abused its discretion in two respects: it departed from established policy when it failed either to apply the Sanchez Sosa factors or to remand to allow the IJ to do so, and it failed to provide a rational explanation for its decision, including its treatment of this court's binding precedent in Caballero-Martinez v. Barr, 920 F.3d at 549. Accordingly, the court vacated the BIA's order and remanded for further proceedings. View "Gonzales Quecheluno v. Garland" on Justia Law

The Eighth Circuit denied a petition for review challenging the BIA's denial of petitioner's second motion to reopen her immigration proceedings. Having reviewed petitioner's proffered evidence, including her affidavit and several news articles, the court concluded that there was no abuse of discretion in the BIA's assessment that the evidence unfortunately "shows that the poor conditions facing gays and Christians in Somalia have remained substantially similar since the time of [her] hearing" and that reopening was not warranted on the basis of changed country conditions.The court also concluded that petitioner failed to establish that she was denied a fair hearing in violation of her due process rights. The court explained that petitioner's removal proceedings did not deny her a fair hearing because nothing in the record suggests the IJ would have had any indication that petitioner, who was incarcerated at the time, was intoxicated or otherwise unable to understand the proceedings. View "Yusuf v. Garland" on Justia Law

The Eighth Circuit denied petitions for review of the BIA's decision affirming the IJ's order denying petitioner and her two minor children's claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner testified that she had suffered persecution, or alternatively torture, at a drug cartel's behest because of her membership in a particular social group defined as "Mexican mothers who refuse to work for the Cartel."The court concluded that the BIA did not err in denying petitioner's asylum application because petitioner's social group is not sufficiently particularized or socially distinct. Insofar as petitioner relies on her uncle's death as evidence of persecution, the court has previously explained that evidence of isolated violence is insufficient. Because petitioner was unable to demonstrate eligibility for asylum, it follows that she is also unable to demonstrate eligibility for withholding of removal. Finally, the court concluded that substantial evidence supported the BIA's denial of CAT relief based on the fact that petitioner can safely relocate, joining her parents in a Mexican state free from the cartel's control. View "Rosales-Reyes v. Garland" on Justia Law

The Eighth Circuit denied a petition for review challenging the BIA's order denying petitioner removal relief. The court concluded that petitioner failed to rebut the presumption set out in In re Y-L-, 23 I.&N. Dec. 270, 274 (A.G.), that unlawful trafficking in controlled substances presumptively constitutes a particularly serious crime. Furthermore, the IJ did not err in not considering mental health as a factor in the particularly serious crime analysis.In regard to relief under the Convention Against Torture, the court agreed with the IJ's finding that, while cartel violence continues in Mexico, that alone cannot show a more-likely-than-not chance that the Mexican government would acquiesce in petitioner's torture. In this case, petitioner's evidence falls short of this standard where the threats she experienced where not sufficient to support her claims. View "Gilbertson v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision concluding that petitioner was removeable and denial of his request for a form of cancellation of removal available to children who have been battered by parents who are lawful permanent residents. The court concluded that petitioner failed to exhaust his claim that the BIA engaged in improper fact finding, the issue is not before the court, and the issue will not be considered. Although the court has jurisdiction to review the predicate legal question whether the Board properly applied the law in determining eligibility, the court lacked jurisdiction to review an ultimate decision denying cancellation of removal as a matter of discretion. View "Mencia-Medina v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision upholding the IJ's decision denying petitioner's request for cancellation of removal. The court concluded that the substitution of an immigration judge did not violate petitioner's due process rights. In this case, the second immigration judge not only stated that she had familiarized herself with the record but also elaborated on pertinent facts in that record. The court also concluded that it lacked jurisdiction to review petitioner's challenge to the BIA's discretionary decision to deny his request for cancellation of removal. View "Avendano-Elvira v. Garland" on Justia Law

The Eighth Circuit denied a petition for review of the BIA's decision denying petitioner's application for cancellation of removal. The court concluded that the substitution of immigration judges between the removal hearing and the decision did not violate the text of 8 U.S.C. 1229a(a)(1) nor petitioner's due process rights. The court explained that the phrase "the immigration judge" used in subsequent clauses simply refers to whichever immigration judge is conducting that part of the removal proceedings; the phrase does not require that the first immigration judge oversee the case from initiation to completion. Furthermore, the judge who wrote the decision fully complied with the governing regulations. Finally, petitioner failed to establish a due process right. View "Orpinel-Robledo v. Garland" on Justia Law

The Eighth Circuit granted a petition for review of the BIA's order determining that petitioner was removable because his prior conviction for enticing a minor under Iowa law was a "crime of child abuse." Applying the categorical approach, the court concluded that the Board's decision cannot be upheld on the rationale advanced by the government because it conflates two separate elements in the Iowa statute. Looking only at the plain text of the Iowa statute, the court cannot exclude the possibility that an offender could be prosecuted for enticing a minor with intent to commit disorderly conduct or harassment upon a minor. Furthermore, the Board's decision is not clear about how it understood the "realistic probability" requirement. Accordingly, the court vacated the Board's decision and remanded for further proceedings. View "Pah Peh v. Garland" on Justia Law

The Eighth Circuit reversed the district court's grant of summary judgment to plaintiff in an action brought against several officials under the Administrative Procedure Act. The district court concluded that the doctrine of issue preclusion barred the government's rationale for denying plaintiff's application for adjustment of status.The court concluded that the disputed issue of whether plaintiff solicited funds for a terrorist organization was not actually litigated in an earlier proceeding, and thus issue preclusion does not apply. In this case, the record shows that whether plaintiff was inadmissible because he solicited funds for a terrorist organization was not raised, contested, and submitted for determination in the 2001 asylum proceeding. The court remanded for further proceedings. View "Fofana v. Mayorkas" on Justia Law